Analysis: Litigation Is Important Tool in Youth Corrections Reform

ByKim Tandy |March 9, 2016

Bringing lawsuits against officials at a youth correctional facility can take years of work to force needed changes, but sometimes is necessary. A long and at times contentious battle in Ohio recently ended after state correctional administrators worked to change harsh discipline policies and enhance mental health services and programming. The efforts finally paid off for the agency and for youth.

This consent decree has been at the cornerstone of one of the most closely examined and widely acclaimed juvenile justice reforms nationally. The Ohio Department of Youth Services has made significant and impressive changes in its system of care, many voluntarily.

After 11 years, Federal Judge Algenon Marbley signed an agreed order in December to remove the Ohio Department of Youth Services from continued federal monitoring of the conditions of its youth facilities.

Litigation began in late 2004, when lawyers for the Children’s Law Center, along with private counsel and the Youth Law Center, filed a class-action civil rights lawsuit against the Ohio Department of Youth Services (DYS). The suit said the conditions of the Scioto Juvenile Correctional Facility were unconstitutional, with poor medical treatment; use of solitary; staff or inmates or both committing assault, physical abuse and sexual abuse; and more.

S.H. v. Stickrath, as it became known, expanded in 2007 to all eight Ohio Department of Youth Services facilities.

The cost and effort involved in the litigation was substantial. The reforms spanned three administrations and five agency directors. As noted in the final Monitor’s Report filed with the court in December 2015, it involved six plaintiffs’ lawyers, four federal monitors, 13 assistant attorneys general, three private and four agency lawyers, and more than 13 subject matter experts.

A collateral case filed by the U.S. Department of Justice added an additional nine lawyers, a separate monitor and additional subject matter experts. The cost of expert fees, as well as ongoing attorney and monitoring fees, was substantial, both in real dollars and in human capital. And that does not include staffing time and other experts hired separately by the state.

Like many states, the Ohio DYS reacted to the legislative zeal of the 1990s by shifting its focus away from rehabilitation and treatment and into punishment. It largely ignored the differences between youth and adults, or of the special needs of the population it housed.

Overcrowding, lack of education and lack of mental health treatment, combined with significant violence and use of restraint and seclusion, created a dangerous and damaging environment for both youth and staff. The system also failed to provide youth with access to the courts, and operated a system of release that perpetuated long-term stays for many. These last two issues would form the basis for two other class-action lawsuits that were added to the remedial plan in the S.H. case.

Not a panacea

Litigation forced many of the changes in Ohio’s juvenile correctional system, but litigation has its limits. Leadership at state agencies can go well beyond the minimum constitutional requirements resulting from a lawsuit and implement best practices and evidence-based programming.

The field of juvenile justice is changing rapidly to incorporate a stronger developmental framework, trauma-informed care and research into what works to reduce recidivism.

Real progress requires correctional administrators to go beyond what is required by law and focus more on achieving better outcomes for youth. While Ohio officials began with the former, they ended with an approach that embraced the latter.

While litigation isn’t a panacea for dangerous and unconstitutional conditions, it can be an essential tool for reform in an arsenal that should also include bold leadership, political will and support from a cadre of allies focused on improving outcomes, promoting transparency and building sustainability measures.

However, it can’t ensure the necessary cultural changes or paradigm shifts that must occur for long-term institutional changes to take root. Reform movements are as effective as their key players, whether judges, attorneys, agency leaders, legislators, advocates or others.

Ohio is not unique in facing long-term litigation in order to challenge harsh and unconstitutional conditions within correctional facilities. An Annie E. Casey report released in 2011 documented at least 57 such lawsuits in 39 states and Puerto Rico spanning four decades. The majority allege systemic problems with violence, physical and/or sexual abuse, and excessive use of isolation and restraint. Others challenged the lack of vital services such as education, medical and mental health programming.

Consent decrees have been issued to address problems in juvenile facilities in Illinois, Georgia, Louisiana, Mississippi, Arizona and many others.

During fiscal year 2014, the federal Justice Department monitored compliance with consent decrees or settlement agreements for juvenile facilities in five states under the Civil Rights of Institutionalized Persons Act, according to a DOJ report.

Only a beginning

David Fathi, director of the National Prison Project at the ACLU, said consent decrees are preferable to "scorched earth" litigation that ends in a ruling. While the participants are unlikely to agree on everything, a consent decree is a starting point.

“When they work well, they’re the best way to solve problems," he said. "When they work well, they’re collaborative.”

But, Fathi cautioned that a consent decree is only a beginning. The state or jurisdiction usually has a great deal of work to do over a period of years, with constant monitoring required.

“The harder part is now making sure the state complies," he said.

Paul DeMuro, an independent juvenile justice consultant who has served as a federal court monitor, said consent decrees work best when they begin with buy-in from the state or local leadership and feature a carefully crafted improvement plan, well-trained staff and robust data collection.

“You try to build a culture where you’re reporting on progress and you’re helping the state or the county or the jurisdiction improve,” he said.

DeMuro said consent decrees are helpful to eradicate harmful conditions, such as a lack of mental health services for suicidal kids or the use of isolation or fixed restraints. It’s much more difficult, though, for consent decrees to fix an entirely broken system. While a consent decree might reform one program, it doesn’t mean the values of the entire system will shift.

“It’s much more difficult, though not impossible,” he said.

Meaningful reforms

Ohio’s 90-page settlement agreement signed in May 2008 detailed reforms in nearly every aspect of the DYS system. An important part was a set of guidelines that incorporated the principles of best practice, evidence-based programming and sound juvenile justice practices designed to change the culture, close facilities and move more youth into community-based programming. It established a collaborative monitoring process that streamlined information flow and facility visits, triaged concerns, moderated disputes, provided transparency in reporting and built in a solid system of quality assurance and quality improvement.

The changes in Ohio’s juvenile correctional system have been meaningful and impressive in many ways. First, only three of the eight facilities remain in operation, and the number of youth sent to DYS has dropped from roughly 1,800 in 2008 to an average of 470 in January 2016.

Because the remaining youth are perhaps among those with the highest need levels, DYS has begun measures to increase facility safety for youth and staff, including near-elimination of room confinement practices, revised intervention strategies and enhanced treatment and activity levels.

Violence dropped when the use of isolation for discipline and all but the most serious infractions was banned. Education and workforce training is significantly improved. Mental health screening and assessment, treatment and programming has been enhanced in meaningful and effective ways. Family and community partnerships are strong and continually improving.

The majority of youth are released before or by the time of the minimum sentence imposed by the court. And a robust Legal Assistance Program provides youth with services. Re-entry has become increasingly important; youth and family members actively participate in meetings, reviews and transitional services early in the process.

Ohio’s active youth advocacy network was also instrumental in addressing legislative and other policy issues that were critical to support and enhance the reforms. Addressing budgetary issues, enhancing community-based options with oversight and quality assurance, and chipping away at other bad policies expanded the litigation’s reach to include other important initiatives to improve the care and treatment of youth in Ohio’s delinquency system.

The Annie E. Casey report concludes that the frequency of cases since 2000 suggests that few lessons have been learned; the nature of running large correctional facilities simply makes it exceedingly difficult to make them safe, humane and effective in reducing recidivism.

Death in Kentucky

Any lessons learned also didn’t prevent the death of 16-year-old Gynnya McMillen in January. Housed in a small Kentucky juvenile detention facility after a “domestic” incident, she refused to remove her sweatshirt. That prompted an aikido restraint by multiple guards. She was then isolated in a cell without the required 15-minute staff checks. A meme posted on Facebook by Gynnya’s sister with Gynnya’s picture simply states, “My mom trusted you with my life. Now I don’t have one.”

Perhaps the new “fourth wave” of juvenile justice reforms will work to reduce youth incarceration and continue to close harmful and ineffective correctional facilities, improve recidivism rates and overall youth life outcomes. Perhaps the continued focus on research and evidence-based programs will make future constitutional legal challenges unnecessary. Perhaps the next wave of juvenile justice agency leaders can champion reforms without litigation, because we know much more about what works and how youth should be treated to get optimal results.

Much can be learned from the litigation and accompanying reforms in Ohio, although there is still much room for improvement. The lessons learned from Ohio’s costly mistakes can benefit other states and jurisdictions without the pains of protracted litigation. The death of Gynnya McMillen, however, suggests to me we still have much work to do.